Ferreira v. Butler, 531 S.W.3d 337 (Tex. App.—Houston [14th Dist.] 2017, vacated & remanded).

Estate Administration

Late Probate


Executrix of Decedent’s estate attempted to probate the will of Decedent’s Wife nine year’s after her death. Wife’s children from a previous relationship contested the application asserting that it was too late to probate Wife’s will as more than four years had elapsed since Wife’s death. Executrix responded that the four year rule did not apply under Estates Code § 256.003 because she was not in default; she applied to probate the will a mere one month after discovering the will. The trial court denied probate and Executrix appealed.


The appellate court affirmed. The court explained that Executrix’s timely conduct was irrelevant. The important issue is whether Decedent acted timely which he clearly did not. The court explained that Executrix, both in her personal capacity and in her representative capacity, could have no greater right than Decedent had when he died.


The court did, however, recognize that there is a split in authority in Texas regarding whether a default by a will beneficiary is attributed to that beneficiary’s successors in interest (heirs or will beneficiaries). Compare In re Estate of Campbell, 343 S.W.3d 899, 905-08 (Tex. App.—Amarillo 2011, no pet.) (default of beneficiary did not bar successors in interest) with Schindler v. Schindler, 119 S.W.3d 923, 929 (Tex. App.—Dallas 2003, pet. denied) (default of beneficiary barred successors in interest). In determining which position to follow, the court followed Faris v. Faris, 138 S.W.2d 830 (Tex. Civ. App.—Dallas 1940, writ ref’d), which barred successors in interest “because the Supreme Court of Texas adopted that opinion and judgment by refusing a writ of error.” Ferreira at 343.


Moral:  Probate a will within four years of the testator’s death.